Töben’s arrest ‘fatally flawed’, says lawyer

But a district judge in London refuses to consider whether the alleged
Holocaust denier should be released from custody ahead of a hearing planned
for next week.

By Joshua Rozenberg

10:56PM BST 10 Oct 2008

Fredrick Töben, the alleged Holocaust denier detained in London last week, was arrested under a “fatally flawed” European arrest warrant, his counsel submitted today.

Ben Watson tried to persuade City of Westminster Magistrates’ Court that Dr Töben should be released unconditionally and allowed to leave the country.

But District Judge Daphne Wickham refused to hear Mr Watson’s application, pointing out that the case had been listed only for a decision on bail.

A public prosecutor in Mannheim is seeking Dr Töben’s extradition on charges of “instigation to race hatred, insult and reviling the memory of the dead”. The charges go back to 2004.

When the hearing opened, Melanie Cumberland, instructed by the Crown Prosecution Service on behalf of the German authorities, told the judge that Germany opposed bail for Dr Töben. He had a “strong incentive to flee”, she said, and no bail conditions would be sufficient.

After speaking to his client, Mr Watson said the bail application would be deferred until next Friday afternoon, when he would be able to develop the submissions he has lodged with the court.

In his written application for his client’s discharge, Mr Watson argues that the European arrest warrant is “plainly defective” because it does not give enough information about the conduct alleged against his client.

Without that information, the court cannot resolve the issue I raised in my analysis last week: did any part of Dr Töben’s alleged conduct occur in the United Kingdom? If so, that would prevent his extradition.

This is how the warrant describes the conduct alleged against Dr Töben:

“From 2000 up to this day, worldwide internet publications of anti-Semitic and/or revisionist nature. Deliberately contrary to the historical truth, the said publications deny, approve or play down above all the mass murder of the Jews planned and implemented by the National-Socialist rulers. The offender is committing the acts in Australia, Germany and in other countries.”

I surmised last week that this was alleged to amount to “racism and xenophobia”, one of the offences on the so-called European framework list. It is indeed, but the conduct is also said to come within an even more vague framework offence, that of “computer-related crime”.

For the warrant to comply with subsection 4(c) of that section, it must contain “particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence” and “the time and place at which he is alleged to have committed the offence”.

Any warrant that does not contain this information is invalid and “cannot be eked out by extraneous information”, the law lords have ruled in a previous case.

But, says Mr Watson in his written argument, there is no clear description in the warrant of the time and place at which Dr Töben is alleged to have committed the offence. The warrant does not say where he was when the information was published on the internet. It is not clear whether he is alleged to have committed the offences in Britain.

It follows, Mr Watson says, that the court cannot even begin to decide whether the German authorities can rely on the framework list offences — as they intend to do — because the warrant fails to specify whether any part of the conduct is alleged to have taken place in the United Kingdom.

He also submits that the description of his client’s alleged conduct is “is simply too vague to fulfil the requirements of section 2”. The court cannot decide whether it amounts to computer-related crime; racism and xenophobia; or an offence under English law.

On behalf of the German authorities, Ms Cumberland handed in written submissions opposing Mr Watson’s arguments. However, a senior CPS lawyer was unable to provide a copy of them for the press.

Dr Töben’s solicitor, Kevin Lowry-Mullins, told reporters that the court would have to define “racism and xenophobia” and “computer-related crime” before deciding whether Dr Töben’s conduct meets either of these definitions.

The solicitor also argues that Dr Töben is being prosecuted on account of his political opinions. If established, this would be a bar to extradition under section 13 of the Act.

If the case is not completed on October 17, a further hearing is planned for November 11. So far, I have heard nothing from Ms Cumberland to persuade me that the Germans are going to win this one.